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Filed 9/27/96

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KENNETH E. BURKE,
Plaintiff-Appellant,
v.
SHIRLEY S. CHATER,
Commissioner, Social Security
Administration,

No. 95-5230
(D.C. No. 93-C-789-W)
(N.D. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District
Judge.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

*

Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.

**

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant Kenneth E. Burke appeals from the district court’s order
affirming the Secretary of Health and Human Services’ denial of his application
for Social Security disability insurance benefits. 1 Claimant, a fifty-four year-old
male with a ninth-grade education, has worked in the past as an oil field driller
and truck driver. He alleges disability from April 29, 1985, when he suffered an
on-the-job accident in which 7,500 volts of electricity passed through his body,
resulting in arthritis, soft tissue injuries, hypertensive vascular disease, ischemia
and coronary artery disease, chronic venous insufficiency, a history of trans
ischemic attacks, and somatoform disorder.
Claimant’s first application for disability benefits, filed on June 17, 1986,
was denied on August 6, 1986, and was not appealed. Following a hearing before
an administrative law judge, claimant’s second application, filed on March 27,
1990, also was denied. On review, the Appeals Council remanded the case for a
supplemental hearing held on February 22, 1993, resulting in another denial

Although this case was filed after the functions of the Secretary of Health
and Human Services, Donna E. Shalala, were transferred to the Commissioner of
Social Security, Shirley S. Chater, effective March 31 1995, we continue to refer
to the Secretary because she was the appropriate party at the time of the
underlying administrative decision.

1

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decision. The magistrate judge affirmed the decision of the Secretary. 2 On
appeal, claimant contends that the Secretary’s decision was not based on
substantial evidence, that the ALJ erred in weighing the opinions of claimant’s
treating physicians, and that the ALJ erred in relying on the opinion of Dr. E.
Joseph Sutton, II, a consulting physician. 3
Our review of the Secretary’s decision is limited to determining whether it
is supported by substantial evidence and whether the Secretary applied correct
legal standards. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994). “To find that the Secretary’s decision is supported by
substantial evidence, there must be sufficient relevant evidence in the record that
a reasonable person might deem adequate to support the ultimate conclusion.”
Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). However, we may neither
reweigh the evidence nor substitute our judgment for that of the Secretary. Id.
Applying these standards, and after thorough review of the record, we affirm.

By consent of the parties, this matter was decided by the magistrate judge.
See Fed. R. Civ. P. 73(a).

2

Claimant raises several other issues relating to the ALJ’s decision which
were neither raised nor ruled on in the district court. Because our scope of review
is limited to those issues properly preserved and presented in the district court,
claimant’s additional issues are deemed waived. See Crow v. Shalala, 40 F.3d
323, 324 (10th Cir. 1994)(“Absent compelling reasons, we do not consider
arguments that were not presented to the district court.”).
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An individual is disabled within the meaning of the Social Security Act
only if his impairments are so severe that he “is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
42 U.S.C. § 423(d)(2)(A). If a claimant meets his burden of proving that he
cannot return to his past work, the burden shifts to the Secretary to show that the
claimant can perform other jobs in the national economy. Ray v. Bowen, 865
F.2d 222, 224 (10th Cir. 1989). Here, the administrative law judge denied
benefits at step five of the five-step evaluation process applied for determining
disability. See Williams v. Bowen, 844 F.2d 748, 750-52 ( 10th Cir.
1988)(discussing the five steps in detail). Finding that claimant could not return
to his past relevant work, the ALJ determined that he retained the residual
functional capacity to perform a full range of medium work limited by his ability
to stoop and bend only occasionally.
The only developed argument claimant asserts is that the ALJ failed to give
sufficient weight to the opinions of his treating physicians. It is well settled that
substantial weight must be given to the opinion of a treating physician unless
good cause is shown to disregard it. Goatcher v. United States Dep’t of Health &
Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). “When a treating
physician’s opinion is inconsistent with other medical evidence, the ALJ’s task is
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to examine the other physicians’ reports to see if [they] outweigh[] the treating
physician’s report, not the other way around.” Id. at 290 (further citation
omitted).
Claimant argues that the medical opinions given by the physicians treating
him immediately subsequent to his accident should be considered dispositive of
his disability. Several of these reports stated that, for a period of time following
his accident, claimant was not able to work. Claimant appears to argue that these
opinions are evidence of disability per se, and the ALJ should have used the later
examinations as evidence of whether claimant’s condition had improved. The
improvement standard, however, applies only in termination cases. Brown v.
Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990).
As the ALJ noted, the majority of the opinions rendered following
claimant’s accident were for the benefit of evaluating claimant’s entitlement to
workmen’s compensation. Moreover, contrary to claimant’s assertion, the ALJ’s
inquiry centered on whether claimant’s condition had worsened since 1986, and
because claimant submitted very little evidence indicating that he sought medical
treatment between that time and the expiration of his insured status on March 31,
1991, the later consultative evaluations were the best evidence on which to rely.
Therefore, the ALJ properly gave more weight to the more recent examinations,
and adequately stated his reasons for doing so. See Goatcher, 52 F.3d at 290.
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Next, claimant argues that the ALJ’s reliance on the consultative
examination of Dr. Sutton does not constitute substantial evidence because the
ALJ did not provide Dr. Sutton with the necessary background information, and
because Dr. Sutton’s report was inconsistent with the evaluations of the other
consultative physicians, Dr. Jerry D. First and Dr. David M. Heck. Our review of
the record shows that Dr. Sutton’s report was prepared based on a thorough
examination of claimant and a comprehensive understanding of claimant’s
medical history. See R. Vol. II at 412-16. Moreover, claimant does not relate any
specific, relevant inconsistencies in the consultative reports, and our review of the
record did not reveal any such inconsistencies. Accordingly, we conclude, as did
the magistrate judge, that the ALJ’s finding of no disability is supported by
substantial evidence and, further, that the ALJ applied the correct legal standards
in reaching his decision.
As a collateral matter, we note that in his decision, the ALJ determined that
there was no good cause for reopening claimant’s August 6, 1986 denial of
benefits, and therefore, claimant was precluded from claiming disability prior to
that date. Claimant argued to the district court, and the magistrate judge agreed,
that because the ALJ considered the medical evidence submitted in support of the
1986 application, he had effectively reopened the application.

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In her brief to this court, the Secretary argues that the magistrate judge
erred in determining that res judicata did not bar the reopening of claimant’s 1986
application. Because the Secretary failed to perfect an appeal on this issue, it is
not properly before this court. See Massachusetts Mutual Life Ins. Co. v.
Ludwig, 426 U.S. 479, 480-81 (1976)(holding that while a nonappealing party
may raise any argument in support of a judgment, without a cross-appeal, a
nonappealing party may not argue “‘with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary’”)(quoting United States v.
American Ry. Express Co. 265 U.S. 425, 435 (1924)). Our decision in this case
obviates further consideration of either the preservation issue or the de facto
opening issue.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber
District Judge

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